Surrogacy deal lands baby's fate in a complex court case
Unclear. In legal limbo. Screwed up.
Attorneys used all three terms Monday to describe the precarious situation of 2-year-old Anthony, conceived under a surrogacy agreement and now at the center of an unusual drama playing out in the state's highest court.
Both of Anthony's biological parents want to raise him, as do a Salt Lake County couple who have been his caretakers for most of his life.
No matter how Utah's Supreme Court justices rule, the outcome stands to be instrumental in plowing new legal ground as non-traditional conceptions become more commonplace.
At issue in the appeal is a 2005 decision by 3rd District Judge Bruce Lubeck. The judge first determined he couldn't legally terminate the parental rights of either of Anthony's biological parents. But he then ruled it would be in the boy's best interest to continue living with the couple who hope to adopt him.
Neither of the biological parents, who conceived Anthony through a surrogacy agreement later determined to be invalid, was allowed visitation.
In downtown Salt Lake City's Matheson courthouse Tuesday, attorneys and the justices puzzled over Lubeck's ruling.
Attorney David Dolowitz, who is representing the boy's biological father, said Lubeck should have chosen between the biological parents after he decided their rights would not be terminated.
"He never should have gotten to a best interests hearing in the first place," Dolowitz said.
Dolowitz said the boy's biological father, Arturo Nuosci, has always made clear he loves the child and wants to raise him. But Nuosci is now serving time behind bars.
Nuosci, a Canadian citizen living in Las Vegas, met Utahn Rachel Sullivan through a Web site and paid her $23,000 to carry his child. After the boy's birth, Nuosci was arrested for making a false application for a U.S. passport. Las Vegas authorities contacted Sullivan to care for the child and she brought him back to Utah.
Surrogacy agreements are not recognized by Nevada courts, and at the time also were invalid in Utah. While Nuosci awaited trial and urged authorities to give custody of his son to his sister in Canada, Sullivan decided to place the baby for adoption with the Salt Lake County couple.
When she changed her mind, a judge decided the relinquishment papers she signed had not been properly executed.
Earlier this year, Nuosci pleaded guilty to mail fraud, identity theft, bank fraud, aiding and abetting, false statement in application and use of a passport, and misuse of a social security number.
A judge sentenced him to serve 33 months, with five years of supervised release and restitution to be paid along with his former lover, John T. Hodes.
"He will be released around the same time the Utah Supreme Court is due to issue its ruling," Dolowitz said Monday.
Chief Justice Christine M. Durham pointed out Utah law does not allow a parent's rights to a child to be terminated solely because the parent is incarcerated.
The couple who want to adopt attended Monday's court hearing, but declined comment.
Utah legalized paid gestational surrogacy, in which an embryo is implanted into a surrogate mother and is not genetically related to her, in May 2005. Contracts are confidential and must be preapproved by a judge.
Other forms of surrogacy arrangements are not recognized in Utah.